Monday, September 24, 2012

Firing an employee? Tell them! (don’t Milton the termination)

Office Space is one of the great movies about the modern workplace. One of its key plot lines involves sad sack employee Milton Waddams, who mumbles through the movie about his missing stapler and ever-moving desk. Amazingly, the company had laid off Milton years earlier without anyone telling him. When the company fixed a computer glitch that had accidentally kept him on the payroll, Milton finally cracked and burned down the office.

Ohio’s workers’ compensation retaliation statute (Revised Code 4123.90, for those counting) is an odd-duck. It has a two-part statute of limitations. First, the aggrieved employee must provide the employer “written notice of a claimed violation … within the 90 days immediately following the discharge, demotion, reassignment, or punitive action taken.” If the employee sends that written notice, he or she then has up to 180 days from the adverse action to file suit. The 90-day notice requirement is “mandatory and jurisdictional,” and no employee is permitted to file a workers’ compensation retaliation claim without sending the written notice.

In Lawrence, the Court answered a question of timing — does that 90-day period begin to run on the effective date of the discharge or when the employee receives notice of the discharge?

The facts of Lawrence illustrate the potential problem. On January 7, 2007, Youngstown suspended Lawrence without pay from his position with the city. Two days later, the city converted the suspension to a termination, and mailed, via regular mail a letter notifying him of the termination. Lawrence claimed he did not learn of his discharge until February 19, 2007. On April 17, 2007, Lawrence’s attorney sent the city a letter stating that Lawrence intended to bring a lawsuit claiming unlawful workers’ compensation retaliation. When he filed his lawsuit a few months later, the city sought, and obtained its dismissal on the basis that Lawrence’s letter was untimely based on his termination date.

The Ohio Supreme Court reversed. It held that normally the start of the 90-day period triggers from the actual discharge date. It also created an exception when the employee both did not know of the discharge and could not reasonably have learned of it:

A limited exception to the general rule that the 90-day period for employer notice … runs from the employee’s actual discharge…. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice … commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.

As the Court reminded us in the Lawrence opinion, “Usually, an employer will make a good-faith effort to communicate the fact of the employee’s discharge to the employee when it occurs…. The employer commonly will use a method like personal notification, hand delivery of notice, or a certified letter.” In other words, if you are going to fire an employee, don’t you owe it to him as a human being to at least tell him?

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